### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00808- CV

Gar y Lloyd Miller, Appellant

v. Gr eg Abbott, At torney G eneral of the State of Texas; and Assi stant Att orney G eneral G eorge N. Ybarra, A ppellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0039 9, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

M E M O R A N D U M O P I N I O N

Gar y L loy d Miller appea ls pro se the trial c ourt’s dismissal of his suit ag ainst Greg Abbott, A ttorney Gene ral of the State of Texas, a nd Assistant A ttorney Gene ral Geor g e N. Ybar ra for alleg ed violations of his rig hts under the Texas Theft L iability Act (TTL A). See Tex. Civ. Prac. & Rem. Code §§ 134.001–.005. Be cause we conclude that Miller has failed to prese rve err or for appea l, we af

firm the trial c ourt’s dismissal. Miller filed his “first complaint” ag ainst Appellee s under the TTL A in Fe bruar y 2010 and attache d an “Iss u e Request For m” and a reque st that the district cler k issue citations and mail them to the “re spondents.” Over the course of the next y ear , Miller sent periodic letters to the 1 court administrator inquiring abou t t he status of his case . I n response to his inquiries, the court

The fac ts rec ited here in are taken from the rec ord on appea l. We acc ept as true fac ts stated 1 in the briefs tha t are not contradic ted by another party . Tex. R. App. P . 38.1(g ).administrator informed Miller in writing that no citations had been issued and there wer e no pending

hear ings. The cl er k fu rt her informed Mi ller t hat questi ons reg arding the i ssuance or ex ecution of citation should b e d i re cted to the cler k, provided the cler

k’s addre ss, and explained that if Miller wanted a hear ing set, he neede d to pro v i d e n o t i ce of what motion or pleading he wanted hear d and an estimated t ime for the he aring . On J anuar y 21, 2011, Miller signe d a mot ion for summ ary j u d gm en t that was filed on Fe bruar y 2, 2011. That same day , Miller was notified that t h e s u i t would be di s m i s s ed for want of prosec ution unless he filed a motion to reta in by Marc h 4, 2011. On Fe bruar

y 14, 2011, Mil l er fi led an “Af fidavit of I nability in L ieu of Pay ment of Court Costs, and I ssuance of Citation” and subsequently had Appellee s serve d with citation. Appellee s filed an

answe r on Marc h 10, 2011. On J une 27, the trial court s i gn ed an order of dismiss al for want of prosec ution. On J une 30, 2011, Miller re ceive d notice of the dismiss al. This appea l followed.

Miller prese nts one issue on appea l—that the trial court err ed by failing to rule on his motion for summary judgme nt. Howeve r, t here is no evidenc e in the re cord tha t Mill er pr esente d a ti mely reque st, objection, or motion complaining of t he trial court’ s fa i l u re t o rule. See Tex. R. App. P. 33.1(a) (2). “As a prer equisite to prese nting a complaint for appellate revie w . . . , the rec ord must show that the motion was broug ht to the trial court’s attention and that the trial court either denied the motion or re fused to r ule and the complaining party objected to the r efusa l.” Quintana

v. CrossFit Dallas, L.L.C. , 347 S.W .3d 445, 449 (Tex. App.—Dallas 2011, no pet.); Tex. R. App. P. 33.1(a)( 2). Ther efor e, Miller did not prese rve this issue for a ppeal. 2

Even if Miller had prese rved this issue for app ea l , the rec ord also shows that Miller’s 2 motion for summary judgme nt was filed befor e Appellees fi l ed an answe r and there fore failed to comply with rule 166a. See Tex. R. Civ. P. 166a(a ) (par ty may move for summa ry j u d gm ent 2I n addition, the s o l e ground for the trial court’s dismiss al was Miller’s failure to

prosec ute this a ction. Miller prese nts no arg ument or leg al authority conce rning the dismiss al and has there fore waived a

ny err or with reg ard to the trial court’s dismiss al orde r. See Tex. R. C iv. P. 38.1(f) ; Jacobs v. Satterwhite , 65 S.W .3d 653, 655–56 (Tex. 2001) (fa ilure to raise issue on appea l waives err or); S

a ve Ou r Springs Alliance, Inc. v. City of Dripping Springs , 304 S.W .3d 871, 885 (Tex. App.—Austin 201 0 , p et

. denied) (same)

. Consequently , Miller has prese rved no issue for

our consideration on appea l. We overr ule Miller’s single issue on appea l and aff irm the trial court’s order of dismissal. 3

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: June 5, 2013

“at any time after the adver se party has appea red or answe red” ) (empha sis added)

. Nor is there any evidenc e in the rec ord that Miller serve d his motion on Appellee s, reque sted a hear ing, or provided notice of a

ny hear ing to Appe llees. See Tex. R. C iv. P. 21. Miller has filed a motion for temporar y restra ining order , which is pendi n g b ef o re this 3 Court. We deny

the motion. 3